Based on 140 year old Sioux treaty, a teen assaulted by soldier gets $600,000

It's the first decision to give Native Americans the right to sue US for damages

In an unprecedented and potentially far-reaching new decision, based on an 1868 treaty with a Sioux tribe, a federal judge has ruled that a Native American teenager who was sexually assaulted by a military recruiter is entitled to more than $600,000 in damages. The case was handled by Miami attorney Adam Horowitz.

It is the first time a Native American will recover "pain and suffering" damages against the United States thanks to the treaty.

“This tremendously significant ruling could open the door to hundreds of similar rape, assault and abuse lawsuits from Native Americans who have been victimized by US government employees," said Horowitz, who represents the plaintiff. She’s Lavetta Elk, a now 26 year old married mother who grew up on the Pine Ridge Indian Reservation in Wounded Knee, South Dakota.

Judge Francis M. Allegra ruled yesterday in favor of Elk and against the US Justice Department, which wanted Elk’s case tossed out. Allegra’s 37 page opinion cited a little-known portion of the Treaty of Fort Laramie, called the ‘bad man’ clause, which says “If bad men among the whites. . . shall commit any wrong upon the Indians, the United States will, upon proof made…reimburse the injured person for the loss sustained.”

At the time of the 2002 assault, Elk was an honor student who had passed up several full college scholarship offers hoping instead to be the first woman in her family to join the Army. Her Rapid City-based recruiter, Sgt. Joseph Kopt, repeatedly deceived her and eventually drove her to a remote spot, locked his car doors, and forced himself on the then-19-year-old for roughly 30 minutes.

Afterwards, Elk became depressed, began drinking, moved often, had frequent nightmares, experienced severe mood swings, and distanced herself from her previously close family. She now lives in California.

Allegra, a US Court of Federal Claims judge in Washington DC, heard the original case in last April in Rapid City.

Until yesterday’s ruling, the ‘bad man’ clause covered only actual ‘out of pocket’ expenses for those victimized by federal workers. (The treaty was signed by Ogala Sioux leaders 141 years ago today.)

"I'm very grateful to this brave woman who exposed this predator despite overwhelming odds,“ said Horowitz. “Lavetta's courage will help others who have been attacked by federal personnel use the courts to warn families about dangerous criminals.”

The ruling’s impact is also psychological, Horowitz stressed. “It offers a ray of hope to many very devastated and often hopeless victims of debilitating sex crimes who often see no way to overcome the on-going pain and depression they suffer from virtually every day.”

Leaders of a support group called SNAP (Survivors Network of those Abused by Priests) also praised the decision.

“We applaud any innovative legal move that helps deter recklessness by any employer when it comes to sexual assault,“ said David Clohessy of St. Louis, national director of a support group called SNAP (the Survivors Network of those Abused by Priests). “Over the years, large and wealthy institutions have proven very adept at evading consequences for their employees’ sexual misdeeds. This ruling will help put a stop to horrific crimes, committed against even the most vulnerable by even the most powerful.”

Clohessy says that this “sound and significant ruling” will "help many victims expose many predators and lead to prevention, healing and justice for child sex victims who have long been trapped in silence and shut out of the justice system."

"Kids are safest when predators are jailed, but when that can't happen, warning families about predators through civil litigation is the next best way to safeguard vulnerable kids, teens and adults,” he said.

Horowitz has handled hundreds of child molestation lawsuits against public and private institutions, including religious denominations.

A copy of the opinion (LAVETTA ELK v. THE UNITED STATES, Court of Federal Claims Case No. 05-186L) is available by contacting Mermelstein & Horowitz, 305 931 2200, www.sexabuseattorney.com